Internet Distribution Covered by Copyright Act, DoJ Says
Mocking what it termed other filers’ “nonsensical” read of the Copyright Act, DoJ said in a file-sharing brief Fri. that Internet distribution clearly comes under the Act’s treatment of the distribution right pertaining to “material objects.” The Elektra v. Barker defendant and Electronic Frontier Foundation (EFF) have said the definition of “copies and phonorecords” in the law excludes network transmission of copyrighted works, a claim that spurred DoJ to tell the U.S. Dist. Court, N.Y. it might intervene (WID April 6 p12). Court precedent and congressional intent line up with its argument, DoJ said.
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“Copies and phonorecords” are “material objects” in which audio or visual material is “fixed by any method now known or later developed,” Sec. 106 of the Act says. A work is “fixed” in a “tangible medium of expression” when, under the Act, it can be “perceived, reproduced or otherwise communicated for a period of more than a transitory duration.” The Act gives no definition of the “distribution right.”
DoJ infringement prosecutions could be threatened under the defendant’s and EFF’s interpretation of the distribution right, the agency said. Since 2001 felony prosecutions for Internet piracy have risen significantly, with more than 100 convictions and nearly 100 more indictments pending. Under the physical-only view of distribution, “not only would current indictments based on violations of the distribution right be jeopardized, but defendants already convicted for violating this right would have a new basis for challenging their convictions,” DoJ said. Under that narrow reading, prosecutors would have to show violation of the reproduction right to get a felony infringement conviction, it added.
A downloaded file’s end destination remains a material object -- typically a hard drive -- even if the content is not transferred via physical media, DoJ said: The Act “does not describe what form a copy or phonorecord must take as it is disseminated from one point to another.” EFF went against the tide of court decisions, at trial and on appeal, holding that unauthorized digital copies sent over a network were infringed, by citing a “single, inapposite case” for its view of the Act’s scope. The 2nd Appeals Court, N.Y., said in Agee v. Paramount that a TV broadcast involved the exclusive right of performance, which is “transitory,” not the distribution right, which is “more than transitory.” However, DoJ said the case supports its read. The appeals court in Agee expressly said it wasn’t decreeing that distribution always must take place in physical form, the agency said.
The “material object” term sought to expand copyright owners’ ability to distribute works by negating a common-law restriction, DoJ said. Under common law, “a copyright owner was presumed to have sold the intangible right in the copyrighted work itself simply by selling the manuscript or work of art embodying the work,” the agency said. Congress made clear its intent to separate the copyright from the material work in the legislative history of the Copyright Act, the agency said: Going back to the Act’s 1976 passage, Congress said in report language “it makes no difference what the form, manner, or medium of fixation may be,” listing forms a work could take. Certain provisions of the Act “would become nonsensical” under a narrow reading of the distribution right -- a compulsory licensing section mentions “digital phonorecord deliveries,” DoJ said.
A 1995 tweak to the Act -- the Digital Performance Right in Sound Recording Act -- doesn’t help narrow-view advocates’ argument, DoJ said. EFF said that, in light of the 1995 law, the Copyright Act distribution right should have been amended had Congress wanted to include electronic transmission. The 1995 law expanded a limited public performance right to sound-recording copyright holders, a response to “interactive digital music services” that let users hear songs on demand, DoJ said. The 1995 law also compelled owners to license “digital delivery” of recordings, again showing Congress to have read the Copyright Act as covering electronic transmission for distribution purposes, the agency said. The final version of a congressional working group report on intellectual property rights flatly said digital transmission is distribution, but EFF cited a “preliminary report” that was ambiguous on digital transmission.
The U.S. isn’t intervening in the case beyond “protecting its criminal prosecutions” by defending a broad reading of the distribution right, DoJ said. The Computer & Communications Industry Assn. and U.S. Internet Industry Assn. raised the issue of whether the “making available” right -- offering files for download -- is part of a copyright holder’s exclusive rights in the Act. DoJ said if the court addressed the making-available right, the govt. might file another statement of interest. That right is wrapped up in World Intellectual Property Organization digital treaties and some free trade agreements, which the president has said require no change to U.S. law to implement, DoJ said.